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Sovereignty and Neutrality in Cyber Conflict

27 Pages Posted: 2 Nov 2011 Last revised: 9 Jun 2015

Eric Talbot Jensen

Brigham Young University School of Law

Date Written: November 1, 2011

Abstract

One of the most difficult issues in cyber conflict is the application of territorial sovereignty and other geographic principles to an activity that defies the traditional notions of borders. The structure of the internet and the protocols by which it operates, including the inability to direct the path over which internet traffic travels, raise questions about the application of law of armed conflict provisions, such as the doctrine of neutrality, to cyber conflict. This paper analyzes the doctrine of neutrality in cyber conflict and argues that most provisions are still applicable to international armed conflicts but that some evolution would add clarity in the cyber age.

The paper then turns its attention to the vexing problem of non-international armed conflicts, or NIACs, where the traditional doctrine of neutrality is not applicable but would prove useful in preventing actions by both States and non-State actors that might tend to escalate the conflict. Applying the law of neutrality to NIACs would also provide non-Parties to the NIAC an additional legal paradigm with authority to prevent cyber actions within their territories.

Keywords: Law of War, Law of Armed Conflict, Computer, Cyber, Neutrality, Sovereignty, International Humanitarian Law, International Armed Conflict, Non-International Armed Conflict, Cyber Crime, malware

JEL Classification: K14, K19, K33, L86, N40

Suggested Citation

Jensen, Eric Talbot, Sovereignty and Neutrality in Cyber Conflict (November 1, 2011). 35 Fordham International Law Journal 815 (2012). Available at SSRN: https://ssrn.com/abstract=1952598

Eric Talbot Jensen (Contact Author)

Brigham Young University School of Law ( email )

504 JRCB
Provo, UT 84602
United States

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